In a recent landmark decision in South Africa, the Constitutional Court ordered an attorney to pay, from his own pocket, the costs of an application which had been brought to the high court, including the cost of the application for the Hight Court Judge's recusal. This rather rugged decision should send out a strong warning to legal practitioners, especially those in litigation. The various divisions of the High Court have issued practise notes to attorneys and advocates and a collection of these would indicate how each particular division of the High Court would expect practitioners to conduct their affairs. Any serious breach of these practise notes would certainly raise the anger of the judges.

In this particular matter, the Constitutional Court heard the application by Mr A M Stainbank against the Apartheid Museum (First Respondent) and the Taxing Master for the North Gauteng High Court (Second Respondent). In the judgement handed down by the Constitutional Court ("CC"), Judge Khampepe, it was recorded that the parties had endured a long and sticky litigation history marked by acrimonious disputes and recriminations over the conception, registration and utilisation of the trademark, "The Apartheid Museum". The Applicant, Mr Stainbank, alleged that he conceived the idea of establishing an apartheid museum to record the history and effect of colonialism and apartheid for educational and other purposes, in 1988. He took steps to register the name "The Apartheid Museum" as a trademark, first in 1990 and then again in 1998.

The First Respondent, a company registered not for gain, also laid claim to the conception of a museum by the same name to record the atrocities and wrongs of apartheid. The Apartheid Museum was opened by the Respondent at the end of 2001 and enjoyed considerable national and international acclaim. Shortly after the First Respondent started operating the museum, Stainbank applied for an interdict against its trading style on the basis of an alleged trade mark infringement. The First Respondent counter applied and sought an order to expunge Stainbank's registration in class 41, which covers education and entertainment services. The Pretoria High Court, as it then was, granted this counter application as well as a costs order in favour of the Apartheid Museum. Stainbank was ordered to pay the costs of that High Court application in Pretoria, which subsequently went on appeal to Bloemfontein, which was unsuccessful. Originally the successful party, the Apartheid Museum, did not immediately pursue the taxation of the Bill of Costs to which it was entitled. However, in the light of the continued vexatious litigation by Stainbank, the Museum set in motion the recovery of costs of the original court application. It therefore set the matter down for taxation before the Taxing Masterand Stainbank objected which formed the basis of an urgent application to stay the taxation.

Originally the Notice of Set down was served on a Thursday at 9am in the morning on the basis that the matter should be heard at 5pm that very same afternoon. The Applicant stated the necessity of it being heard at such short notice was that his advocate would be flying in from Durban and therefore only available that afternoon.

A.J. Ebersohn, the acting judge in the urgent motion court that week, enquired why the matter should not be set down for 10am the following morningand stated that the attorney had a considerable time period within which to prepare his application and should not have left it to the last minute. Also, the court would not be at the convenience of the Applicant's advocate who was travelling from Durban to attend.

Thereafter followed a considerable interaction between the judge and the attorney in the first instance,which led to the judge saying in court: "Your attorney is lying".

The Applicant's counsel and attorney applied for the judge to then recuse himself which he refused to do.

Mr Acting Justice Ebersohn made an order against the Applicant, Stainbank, refusing his application to stay the taxation proceedings; but more particularly granting an order of costs on the higher attorney and client scale. What was interesting was that Justice Ebersohn's order was that if Stainbank did not or could not pay, then the attorney himself should pay. In other words, the attorney was to pay the costs, de boni propriis. This was a very severe order against an Applicant and even more severe against an attorney. The Applicant, Stainbank, sought relief from the CC. In the CC’s unanimous decision, it stated that it had jurisdiction to hear matters where it is claimed a judge has acted improperly, or in this case, with bias. The CC went on to confirm an earlier High Court decision which emphasises that not only is there presumption in favour of the impartiality of a court of law, but it is a presumption that is not easily dislodged. A court considering the issue of bias should be circumspect not to permit a disgruntled litigant to complain of bias merely because a ruling had been given against her or him; or because the judge had been irritated by the manner in which the case was conducted.  

The Court then noted that the Applicant's attorney was not without blemish, having breached practise directions regarding the setting down of matters in the urgent court, attempting to enrol the matter outside normal court hours, and failing to index and paginate the founding papers that were unnecessarily prolix.  

The Court noted that the statement made by the judge that the Applicant's attorney was "lying" was unfortunate. However, having considered all the factors, this statement fell short of dislodging the presumption of impartiality. The Court found that the application based on bias could not succeed.  

As far as the attorney was concerned, the CC recorded that although courts have the power to award costs from a legal practitioner's own pocket, costs will only be awarded on this basis where a practitioner has acted inappropriately or in a reasonably egregious manner. Conduct that is seen as unreasonable, wilfully disruptive or negligent may constitute conduct that may attract an order of costs de boni propriis.  

Punitive costs have been granted when a practitioner instituted proceedings in a hap-hazard manner, wilfully ignored court proceedings or rules, presented a case in a misleading manner and forwarded an application that was plainly misconceived and frivolous.  

The CC therefore concluded that the conduct of the Applicant's attorney justified an award of costs from the attorney's own pocket.  

What this judgment emphasises is that legal practitioners need to be cautious. There has to be respect, more particularly for the practise notes issued by that Court. Respect should be shown towards judges and more particularly attempts should not be made to bend the rules and practise notes merely to suit a client in a given matter.